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India is a secular country and a home to many religions. The two religions widely followed in India are Hinduism and Islam. The institution of marriage and other related issues like divorce, maintenance, etc. are governed by both statutory personal laws and secular laws. Among the Hindus, it is governed by the Hindu Marriage Act 1955 and among the Muslims, it is governed by the Muslim Law. For those marriages registered under the Special Marriage Act, 1954, the issues of divorce are governed by the same.

Divorce Under The Hindu Marriage Act, 1955

For a long time, the idea of divorce did not exist among the Hindus. This is because, for Hindus, marriage is a sacrament, a lifelong commitment. This changed with the introduction of Divorce under the Hindu Marriage Act, 1955.

The three theories of divorce are:

  • Fault Theory under which marriages can be dissolved when either of the parties has committed a matrimonial offence. The innocent party can seek the remedy of divorce.
  • Mutual Consent Theory with the underlying theory that since marriage is entered into by the mutual consent of two parties, the parties should be able to opt-out of it according to their wishes.
  • Irretrievable breakdown of marriage theory under which there exists such extreme situations where there is no probability of the spouses staying together in a marriage.

The major grounds on the basis of which divorce can be sought are adultery, leprosy, cruelty, desertion, conversion, insanity, renunciation, presumption of death, and certain Special Grounds on which the wife can seek divorce such as Pre-Act Polygamous Marriage where the husband had a wife (alive) from another marriage or is guilty of rape, sodomy or bestiality.

Adultery refers to a situation where there is voluntary sexual intercourse between a married person and another, whether married or unmarried, of the opposite sex. The important things to prove over here are that the act was performed during the subsistence of a marriage and that it was consensual.

Desertion refers to permanent abandonment of a spouse by the other for a period of a minimum of 2 years without any proper reason. Insanity refers to a state where the spouse is suffering from an incurable mental disorder, which makes it impossible for the other spouse to live with them. Renunciation can be used as a ground when a partner has given up the material life and entered into an absolute religious order. Presumption of death can be used as a ground wherein the partner’s whereabouts aren’t known for 7 years

Cruelty, under its modern definition, refers to both mental and physical cruelty. Acts of cruelty are behavioural manifestations stimulated by different factors in the life of spouses, and their surroundings and therefore; each case has to be decided on the basis of its own set of facts.[1] While it is easy to determine acts of physical cruelty, it gets difficult to determine mental cruelty.

Divorce Under The Muslim Marriage Act, 1939

Under this Act, there are several grounds for the filing of the divorce petition. The two distinct categories are:

  • Judicial Divorce: This can be granted by the court when the:
  • Whereabouts of the husband are not known.
  • Husband has failed to maintain the wife for more than 2 years.
  • Husband is sentenced to jail.
  • Husband is impotent.
  • Husband is insane or has leprosy or virulent venereal diseases.
  • Marriage is repudiated.
  • Wife is subjected to cruelty by her husband.
  • Wife is falsely accused of adultery.
  • Spouse has converted to another religion.[2]
  • Extrajudicial Divorce:By wife – talaaq-i-tafweez, lian

Under Talaaq-i-tafweez, the Muslim man has the option to delegate the power of divorcing from his wife or any other person absolutely or imposes some conditions, either permanently or for a temporary period. If the power is assigned to the wife, she has the right to exercise it, and if she uses this power, the divorce is valid and final. Under Lian, the wife possesses the power to divorce her husband on the grounds of false character assassinations.

  • Husband – Talaaq-i-sunnat, ziher and ila

Talaaq-i-sunnat is further divided into two parts i.e. ahasan and hasan. Under both these the husband pronounces talaaq during tuhr but in the ahasan he does it once but in hasan he does it three successive times.

Under Ziher, the husband grants his wife a title equal to that of another woman and doesn’t cohabit with her for 4 months and does some charitable activities.

Ila refers to the kind of agreement where the husband pledges to refrain from engaging sexually with his wife for 4 months. At the end of these 4 months, the marriage automatically dissolves if the husband stands by his pledge.

  • By mutual agreement – khula and mubarat

Khula gives the right to the woman to move the divorce petition if she doesn’t want to stay with her husband for no fault of his but the husband needs to give his free consent. Mubarat can be moved by either spouse but the other spouse has to consent to it. [3]

Divorce Under Special Marriage Act, 1954

Section 27 and 28 of The Special Marriage Act, 1954 contain the clause of divorce. The petition for divorce can be presented to the District Court by either the husband or the wife or both of their mutual consent. The eight grounds of divorce under which the petition can be filed are Adultery Two years desertion Respondent undergoing a sentence of imprisonment for seven years or more for n offence under IPC, 1860 Cruelty Venereal diseases in a communicable form Leprosy Incurable insanity or continuous or intermittent mental disorder, and Presumption of death. Two additional grounds have been granted to the wife under which the petition can be filed, they are

  • husband being guilty of rape, sodomy and bestiality
  • No cohabitation for one or more years.

When the petition is being filed under mutual consent it must be filed one year from the date of registration of marriage though relaxation may be provided in exceptional cases. The grounds provided are as follows,

  • that they have been living separately for a period of one year or more,
  • that they have not been able to live together, and
  • that they have mutually agreed that the marriage should be dissolved. [4]

It must be kept in mind that the marriage should be registered under The Special Marriage Act, 1954.

[1] Simran, Divorce under Hindu Law, https://www.lawctopus.com/academike/divorce-under-hindu-law/ , (October 23, 2019, 10:00 PM).

[2]  Shivi Gupta, Divorce in Islam: Indian Perspective, https://www.myadvo.in/blog/divorce-in-islam/ , (October 23, 2019, 10:45PM).

[3]  Setu Gupta, The Concept of Divorce under Muslim Law, http://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html, (October 24, 2019, 9:00PM).

[4] Divorce by mutual consent under the special marriage Act, 1954, https://sunderbanlawoffices.com/2011/07/30/divorce-by-mutual-consent-under-the-special-marriage-act-1954/, (October 24, 2019, 10:00PM).

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